EXHIBIT 10.1
AMENDMENT
This AMENDMENT, dated as of September 4, 2002 (this
"Amendment"), is made to that certain Credit Agreement, dated as
of September 5, 2001 (the "Credit Agreement"), among BUCKEYE
PARTNERS, L.P. (the "Borrower"), SUNTRUST BANK, as administrative
agent (the "Administrative Agent"), and certain lenders party
thereto (the "Lenders").
PRELIMINARY STATEMENT:
The Borrower, the Lenders and the Administrative Agent
previously entered into the Credit Agreement. The Borrower has
requested that the Lenders agree to the amendment of the Credit
Agreement as set forth herein, and the Lenders have agreed to
such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the
Credit Agreement.
SECTION 2. Amendment. Section 10.01(e) of the Credit
Agreement is, subject to the satisfaction of the conditions
precedent set forth in Section 3, hereby amended and restated in
its entirety as follows:
"(e) INTENTIONALLY OMITTED; or"
SECTION 3. Conditions of Effectiveness. Section 2 of this
Amendment shall become effective as of the date first set forth
above when each of the following conditions shall have been
fulfilled:
(i) the Required Lenders and the Borrower shall have executed
and delivered to the Administrative Agent a counterpart of this
Amendment;
(ii) all of the Guarantors shall have executed and delivered the
consent to this Amendment in substantially the form of Exhibit A
attached hereto;
(iii) the Administrative Agent shall have received evidence
that the commitments of the lenders under the 364-Day Credit
Agreement, dated as of September 5, 2001, among the Borrower, the
lenders party thereto and SunTrust Bank, as agent for such
lenders, have been terminated and the obligations thereunder have
been paid in full; and
(iv) the representations and warranties set forth in Section 4
hereof shall be true and correct on and as of the date of
effectiveness of this Amendment as though made on and as of such
date.
SECTION 4. Representations and Warranties. The Borrower
represents and warrants that (a) the representations and
warranties contained in Article VII of the Credit Agreement, as
amended hereby (with each reference therein to (i) "this
Agreement", "hereunder" and words of like import referring to the
Credit Agreement being deemed to be a reference to this Amendment
and the Credit Agreement as amended hereby and (ii) "Credit
Documents", "thereunder" and words of like import being deemed to
include Amendment and the Credit Agreement, as amended hereby)
are true and correct on and as of the date hereof as though made
on and as of such date, and (b) no event has occurred and is
continuing, or would result from the execution and delivery of
this Amendment, that constitutes an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as
specifically provided above, the Credit Agreement shall continue
to be in full force and effect and is hereby in all respects
ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of the Lenders under the Credit Agreement, nor constitute
a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent
with respect thereto, and all costs and expenses (including,
without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
SECTION 8. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the
State of the New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
duly authorized officers as of the date first above written.
BUCKEYE PARTNERS, L.P., as
Borrower
By BUCKEYE PIPE LINE
COMPANY,
its general partner
By
Name:
Title:
SUNTRUST BANK, as
Administrative Agent and
Lender
By
Name:
Title:
BNP PARIBAS
By____________________________
Name:
Title:
By____________________________
Name:
Title:
CITIBANK, N.A.
By____________________________
Name:
Title:
FLEET NATIONAL BANK
By ____________________________
Name:
Title:
THE FUJI BANK, LIMITED
By____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
New York Branch
By___________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LTD.
By___________________________
Name:
Title:
THE SANWA BANK LIMITED
By__________________________
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By__________________________
Name:
Title:
JPMORGAN CHASE BANK
By__________________________
Name:
Title:
EXHIBIT A
FORM OF CONSENT
Dated as of September __, 2002
The undersigned, [NAME OF GUARANTOR] (the "Company"), as
guarantor under the Guaranty, dated as of September 5, 2001, made
by the Company to SunTrust Bank, as administrative agent (the
"Administrative Agent") for the lenders (the "Lenders") party to
the Credit Agreement, dated as of September 5, 2001 (the "Credit
Agreement"), among BUCKEYE PARTNERS, L.P. (the "Borrower"), the
Lenders and the Administrative Agent, hereby consents to the
amendment of the Credit Agreement by the Amendment, dated as of
September 4, 2002 (the "Amendment"), among the Borrower, the
Lenders signatories thereto and the Administrative Agent, and
hereby confirms and agrees that (i) the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that, upon the effectiveness
of, and on and after the date of, the Amendment, each reference
in the Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement,
as amended by the Amendment and (ii) the Guaranty is, and shall
continue to, be an unconditional and irrevocable guaranty of all
of the Obligations (as defined in the Guaranty).
[NAME OF GUARANTOR]
By
Name:
Title:
AMENDMENT NO. 2
This AMENDMENT NO. 2, dated as of June 12, 2003 (this
"Amendment"), is made to that certain Credit Agreement, dated as
of September 5, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among BUCKEYE PARTNERS, L.P. (the "Borrower"), SUNTRUST BANK, as
administrative agent (the "Administrative Agent"), and certain
lenders party thereto (the "Lenders").
PRELIMINARY STATEMENT:
The Borrower, the Lenders and the Administrative Agent
previously entered into the Credit Agreement. The Borrower has
requested that the Lenders agree to the amendment of the Credit
Agreement as set forth herein, and the Lenders have agreed to
such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the
Credit Agreement.
SECTION 2. Amendments.
(a) Section 9.03 of the Credit Agreement is hereby amended by
deleting such Section 9.03 in its entirety and replacing it with
the following:
Section 9.03 Investments, Loans and Advances.
The Borrower will not and will not cause or
permit any Guarantor or any Restricted Subsidiary to
make or permit to remain outstanding any loans or
advances to or investments in any Person, except that
the foregoing restriction shall not apply to:
(a) investments, loans or advances reflected in
the Financial Statements or which are disclosed to the
Lenders in Schedule 9.03;
(b) accounts receivable arising in the ordinary
course of business;
(c) direct obligations of the United States or
any agency thereof, or obligations guaranteed by the
United States or any agency thereof, in each case
maturing within one year from the date of creation
thereof;
(d) commercial paper maturing within one year
from the date of creation thereof rated in the highest
grade by S&P or Xxxxx'x;
(e) deposits maturing within one year from the
date of creation thereof with, including certificates
of deposit issued by, any Lender or any office located
in the United States of any other bank or trust company
which is organized under the laws of the United States
or any state thereof, has capital, surplus and
undivided profits aggregating at least $100,000,000.00
(as of the date of such Lender's or bank or trust
company's most recent financial reports) and has a
short term deposit rating of no lower than A2 or P2, as
such rating is set forth from time to time, by S&P or
Xxxxx'x, respectively;
(f) deposits in money market funds investing
exclusively in investments described in
Section 9.03(c), 9.03(d) or 9.03(e);
(g) investments, loans or advances made in or to
the Borrower or any Restricted Subsidiary that has
executed a Guaranty;
(h) investments, loans or advances in or to any
Person (other than the Borrower or any Restricted
Subsidiary that has executed a Guaranty) not to exceed
$100,000,000 in the aggregate at any time outstanding;
and
(i) other investments, loans and advances in or
to any Person made with equity of the Borrower or with
other consideration, including cash, not to exceed the
amount of net proceeds received by the Borrower from an
equity offering occurring substantially concurrent
therewith.
(b) The Credit Agreement is hereby amended by replacing Schedule
9.03 in its entirety with Schedule 9.03 attached hereto.
(c) The Credit Agreement is hereby amended by replacing Exhibit
D-1 in its entirety with Exhibit D-1 attached hereto
(d) The Credit Agreement is hereby amended by replacing Exhibit
D-2 in its entirety with Exhibit D-2 attached hereto.
SECTION 3. Conditions of Effectiveness. Section 2 of this
Amendment shall become effective as of the date first set forth
above when each of the following conditions shall have been
fulfilled:
(i) all conditions precedent set forth in Article VI of the
Credit Agreement shall have been satisfied or waived;
(ii) the Lenders and the Borrower shall have executed and
delivered to the Administrative Agent a counterpart of this
Amendment;
(iii) all of the Guarantors shall have executed and delivered
the consent to this Amendment in substantially the form of
Exhibit A attached hereto; and
(iv) the representations and warranties set forth in Section 4
hereof shall be true and correct on and as of the date of
effectiveness of this Amendment as though made on and as of such
date.
SECTION 4. Representations and Warranties. The Borrower
represents and warrants that (a) the representations and
warranties contained in Article VII of the Credit Agreement, as
amended hereby (with each reference therein to (i) "this
Agreement", "hereunder" and words of like import referring to the
Credit Agreement being deemed to be a reference to this Amendment
and the Credit Agreement as amended hereby and (ii) "Credit
Documents", "thereunder" and words of like import being deemed to
include this Amendment and the Credit Agreement, as amended
hereby) are true and correct on and as of the date hereof as
though made on and as of such date, and (b) no event has occurred
and is continuing, or would result from the execution and
delivery of this Amendment, that constitutes an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as
specifically provided above, the Credit Agreement shall continue
to be in full force and effect and is hereby in all respects
ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of the Lenders under the Credit Agreement, nor constitute
a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent
with respect thereto, and all costs and expenses (including,
without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
SECTION 8. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the
State of the New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
duly authorized officers as of the date first above written.
BUCKEYE PARTNERS, L.P., as
Borrower
By BUCKEYE PIPE LINE
COMPANY,
its general partner
By
Name:
Title:
SUNTRUST BANK, as
Administrative Agent and
Lender
By
Name:
Title:
BNP PARIBAS
By____________________________
Name:
Title:
By____________________________
Name:
Title:
CITIBANK, N.A.
By____________________________
Name:
Title:
THE FUJI BANK, LIMITED
By ____________________________
Name:
Title:
FLEET NATIONAL BANK
By ____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By____________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LTD.
By___________________________
Name:
Title:
THE SANWA BANK LIMITED
By__________________________
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By__________________________
Name:
Title:
EXHIBIT A
FORM OF CONSENT
Dated as of June 12, 2003
The undersigned, [NAME OF GUARANTOR] (the "Company"),
as guarantor under the Guaranty, dated as of September 5,
2001, made by the Company to SunTrust Bank, as
administrative agent (the "Administrative Agent") for the
lenders (the "Lenders") party to the Credit Agreement, dated
as of September 5, 2001 (as amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), among
BUCKEYE PARTNERS, L.P. (the "Borrower"), the Lenders and the
Administrative Agent, hereby consents to the amendment of
the Credit Agreement by the Amendment No. 2, dated as of
June 12, 2003 (the "Amendment"), among the Borrower, the
Lenders signatories thereto and the Administrative Agent,
and hereby confirms and agrees that (i) the Guaranty is, and
shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, the
Amendment, each reference in the Guaranty to the "Credit
Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement, as amended by the
Amendment and (ii) the Guaranty is, and shall continue to,
be an unconditional and irrevocable guaranty of all of the
Obligations (as defined in the Guaranty).
[NAME OF GUARANTOR]
By
Name:
Title:
AMENDMENT NO. 3
This AMENDMENT NO. 3, dated as of June 27, 2003 (this
"Amendment"), is made to that certain Credit Agreement, dated as
of September 5, 2001 (as amended, the "Credit Agreement"), among
BUCKEYE PARTNERS, L.P. (the "Borrower"), SUNTRUST BANK, as
administrative agent (the "Administrative Agent"), and certain
lenders party thereto (the "Lenders").
PRELIMINARY STATEMENT:
The Borrower, the Lenders and the Administrative Agent
previously entered into the Credit Agreement. The Borrower has
requested that the Lenders agree to the amendment of the Credit
Agreement as set forth herein, and the Lenders have agreed to
such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the
Credit Agreement.
SECTION 2. Amendments.
Section 9.01 of the Credit Agreement is hereby amended by
(i) deleting the "and" at the end of clause (g), (ii) replacing
the "." at the end of clause such (h) with "; and" and (iii)
inserting the following as a new clause (i):
(i) Debt under that certain Indenture, entered
into in July, 2003, by and among the Borrower and
SunTrust Bank, as Trustee, as amended and supplemented
from time to time.
SECTION 3. Conditions of Effectiveness. Section 2 of this
Amendment shall become effective as of the date first set forth
above when the Required Lenders and the Borrower shall have
executed and delivered to the Administrative Agent a counterpart
of this Amendment, and all Guarantors shall have executed and
delivered the consent to this Amendment in substantially the form
of Exhibit A attached hereto.
SECTION 4. Representations and Warranties. The Borrower
represents and warrants that (a) the representations and
warranties contained in Article VII of the Credit Agreement, as
amended hereby (with each reference therein to (i) "this
Agreement", "hereunder" and words of like import referring to the
Credit Agreement being deemed to be a reference to this Amendment
and the Credit Agreement as amended hereby and (ii) "Credit
Documents", "thereunder" and words of like import being deemed to
include this Amendment and the Credit Agreement, as amended
hereby) are true and correct on and as of the date hereof as
though made on and as of such date, and (b) no event has occurred
and is continuing, or would result from the execution and
delivery of this Amendment, that constitutes an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as
specifically provided above, the Credit Agreement shall continue
to be in full force and effect and is hereby in all respects
ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of the Lenders under the Credit Agreement, nor constitute
a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent
with respect thereto, and all costs and expenses (including,
without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
SECTION 8. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the
State of the New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
duly authorized officers as of the date first above written.
BUCKEYE PARTNERS, L.P., as
Borrower
ByBUCKEYE PIPE LINE COMPANY,
its general partner
By
Name:
Title:
SUNTRUST BANK, as Administrative
Agent and Lender
By
Name:
Title:
BNP PARIBAS
By____________________________
Name:
Title:
By____________________________
Name:
Title:
CITIBANK, N.A.
By____________________________
Name:
Title:
THE FUJI BANK, LIMITED
By ____________________________
Name:
Title:
FLEET NATIONAL BANK
By____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By__________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LTD.
By___________________________
Name:
Title:
THE SANWA BANK LIMITED
By__________________________
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION
By__________________________
Name:
Title:
JPMORGAN CHASE BANK
By__________________________
Name:
Title:
EXHIBIT A
FORM OF CONSENT
Dated as of July 27, 2003
The undersigned parties (each, a "Company"), as
guarantor under the Guaranty, dated as of September 5, 2001,
made by the Company to SunTrust Bank, as administrative
agent (the "Administrative Agent") for the lenders (the
"Lenders") party to the Credit Agreement, dated as of
September 5, 2001 (the "Credit Agreement"), among BUCKEYE
PARTNERS, L.P. (the "Borrower"), the Lenders and the
Administrative Agent, hereby consents to the amendment of
the Credit Agreement by the Amendment No. 3, dated as of
June 27, 2003 (the "Amendment"), among the Borrower, the
Lenders signatories thereto and the Administrative Agent,
and hereby confirms and agrees that (i) the Guaranty is, and
shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, the
Amendment, each reference in the Guaranty to the "Credit
Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement, as amended by the
Amendment and (ii) the Guaranty is, and shall continue to,
be an unconditional and irrevocable guaranty of all of the
Obligations (as defined in the Guaranty).
[NAMES OF GUARANTOR]
By
Name:
Title:
AMENDMENT NO. 4
This AMENDMENT NO. 4, dated as of September 3, 2003 (this
"Amendment"), is made to that certain Credit Agreement, dated as
of September 5, 2001 (as amended, the "Credit Agreement"), among
BUCKEYE PARTNERS, L.P. (the "Borrower"), SUNTRUST BANK, as
administrative agent (the "Administrative Agent"), and certain
lenders party thereto (the "Lenders").
PRELIMINARY STATEMENT:
The Borrower, the Lenders and the Administrative Agent
previously entered into the Credit Agreement. The Borrower has
requested that the Lenders agree to the amendment of the Credit
Agreement as set forth herein, and the Lenders have agreed to
such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the
Credit Agreement.
SECTION 2. Amendments.
(a) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definitions of "EBITDA", "Indenture", Note
Agreement, "Other Agreement" and "Senior Notes" and inserting in
lieu thereof the following new definitions:
"EBITDA" shall mean for any Person for any period,
the sum of Consolidated Net Income for such period plus
the following expenses or charges to the extent
deducted from Consolidated Net Income for such period:
interest, taxes, depreciation, depletion, amortization
and GP Incentive Compensation Payments; provided,
however, with respect to the Borrower, if during any
period the Borrower acquires any Person and such Person
becomes a Restricted Subsidiary or the Borrower
acquires all or substantially all of the assets of any
Person, the EBITDA attributable to such Person or
assets for such period determined on a pro forma basis
(which determination, in each case, shall be subject to
the approval of the Required Lenders, not to be
unreasonably withheld) may be included in EBITDA for
the calculation of the Funded Debt Ratio.
"Indenture" shall mean that certain Indenture,
dated as of July 10, 2003, between the Borrower and
SunTrust Bank, as Trustee, as amended and supplemented
from time to time.
"Note Agreements" shall mean each of (i) the
Underwriting Agreement, dated July 7, 2003, among the
Borrower, BPLC and X.X. Xxxxxx Securities Inc. and (ii)
the Purchase Agreement, dated August 14, 2003, among
the Borrower, BPLC and the initial purchasers named
therein.
"Senior Notes" shall mean (i) the 4 5/8% Notes, in
the aggregate principal amount of $300,000,000, due
2013 and (ii) the 6 3/4% Notes, in the aggregate
principal amount of $150,000,000, due 2033; each issued
pursuant to the Indenture.
"Other Credit Agreement" shall mean the 364-Day
Credit Agreement, dated as of September 3, 2003, as
amended, modified or supplemented from time to time,
among the Borrower, the lenders from time to time
parties thereto and SunTrust Bank, as agent for such
lenders, and any renewals thereof.
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions of "Account Party" and "GP
Incentive Compensation Payments" to Section 1.01 in the
appropriate alphabetical order:
"Account Party" shall mean the Borrower or any
Restricted Subsidiary of the Borrower for whose account
a Letter of Credit has been issued.
"GP Incentive Compensation Payments" shall mean
the quarterly incentive compensation payments paid to
the General Partner by the Borrower pursuant to that
certain Second Amended and Restated Incentive
Compensation Agreement, dated as of April 23, 2001, as
it may be amended from time to time.
(c) Section 2.01(c) of the Credit Agreement is hereby amended by
deleting Section 2.01(c) in its entirety and inserting in lieu
thereof the following new Section 2.01(c):
(c) Letters of Credit. During the period from
and including the date hereof to, but excluding, the
Termination Date, the Issuing Bank, as issuing bank for
the Lenders, agrees, on the terms and conditions of
this Agreement, to extend credit for the account of any
Account Party at any time and from time to time by
issuing, renewing, extending or reissuing Letters of
Credit; provided, however, the LC Exposure at any one
time outstanding shall not exceed the lesser of (i) the
LC Commitment and (ii) the Aggregate Revolving Credit
Commitments, as then in effect, minus the aggregate
principal amount of all Loans then outstanding. The
Lenders shall participate in such Letters of Credit
according to their respective Percentage Shares. Each
Letter of Credit shall (i) be issued by the Issuing
Bank, (ii) contain such terms and provisions as are
reasonably required by the Issuing Bank, (iii) be for
the account of the Account Party named therein and
(iv) expire not later than the earlier of (A) two years
from the date of issuance and (B) five days before the
Termination Date.
(d) Section 2.02(g) of the Credit Agreement is hereby amended by
deleting Section 2.02(g) in its entirety and inserting in lieu
thereof the following new Section 2.02(g):
(g) Letters of Credit. The Borrower shall give
the Issuing Bank advance notice to be received by the
Issuing Bank not later than 11:00 a.m. Atlanta time not
less than three Business Days prior thereto of each
request for the issuance, and at least three Business
Days prior to the date of the renewal or extension, of
a Letter of Credit hereunder which request shall
specify (i) the amount of such Letter of Credit,
(ii) the date (which shall be a Business Day) such
Letter of Credit is to be issued, renewed or extended,
(iii) the duration thereof, (iv) the name and address
of the beneficiary thereof, (v) the name of the Account
Party on whose behalf the Letter of Credit shall be
issued, (vi) the form of the Letter of Credit and
(vii) such other information as the Agent may
reasonably request, all of which shall be reasonably
satisfactory to the Agent. Subject to the terms and
conditions of this Agreement, on the date specified for
the issuance, renewal or extension of a Letter of
Credit, the Agent shall issue, renew or extend such
Letter of Credit to the beneficiary thereof.
(e) Section 2.09 of the Credit Agreement is hereby amended by
deleting Sections 2.09(a) and (b) in their entirety and inserting
in lieu thereof the following new Sections 2.02(a) and (b):
(a) If a disbursement by the Issuing Bank is made
under any Letter of Credit, the Borrower and the
applicable Account Party hereby jointly and severally
agree pay to the Agent within two Business Days after
notice of any such disbursement is received by the
Borrower and such Account Party, the amount of such
disbursement (if such payment is not sooner effected as
may be required under this Section 2.09 or under other
provisions of the Letter of Credit), together with
interest on the amount disbursed from and including the
date of disbursement until payment in full of such
disbursed amount at a varying rate per annum equal to
(i) the then applicable interest rate for Base Rate
Loans through the second Business Day after notice of
such disbursement is received by the Borrower and
(ii) thereafter, the Post-Default Rate for Base Rate
Loans (but in no event to exceed the Highest Lawful
Rate) for the period from and including the third
Business Day following the date of such disbursement to
and excluding the date of repayment in full of such
disbursed amount. The obligations of the Borrower and
each Account Party under this Agreement with respect to
each Letter of Credit shall be absolute, unconditional
and irrevocable and shall be paid or performed strictly
in accordance with the terms of this Agreement under
all circumstances whatsoever, including, without
limitation, but only to the fullest extent permitted by
applicable law, the following circumstances: (i) any
lack of validity or enforceability of this Agreement,
any Letter of Credit or any of the other Loan
Documents; (ii) any amendment or waiver of (including
any default), or any consent to departure from this
Agreement (except to the extent permitted by any
amendment or waiver), any Letter of Credit or any of
the other Loan Documents; (iii) the existence of any
claim, set-off, defense or other rights which the
Borrower or any other Account Party may have at any
time against the beneficiary of any Letter of Credit or
any transferee of any Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank, the Agent, any Lender
or any other Person, whether in connection with this
Agreement, any Letter of Credit, the other Loan
Documents, the transactions contemplated hereby or any
unrelated transaction; (iv) any statement, certificate,
draft, notice or any other document presented under any
Letter of Credit proves to have been forged,
fraudulent, insufficient or invalid in any respect or
any statement therein proves to have been untrue or
inaccurate in any respect whatsoever; (v) payment by
the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate which appears on
its face to comply, but does not comply, with the terms
of such Letter of Credit; and (vi) any other
circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Notwithstanding any other provision of this
Agreement to contrary, in the event that a Letter of
Credit is issued on account of an Account Party other
than the Borrower, the Borrower agrees that it shall be
the primary obligor with respect to any reimbursement
obligations arising under such Letter of Credit, and
that any payments made by the Borrower to the Agent in
respect of such reimbursement obligations shall be
deemed to be a contribution of the amount of such
payment to the capital of the applicable Account Party
by the Borrower of a like amount, followed by a payment
of such reimbursement obligations in a like amount, and
will be paid by the Borrower directly to the Agent
solely to avoid the inefficiency of multiple transfers
of funds.
Notwithstanding anything in this Agreement to the
contrary, neither the Borrower nor any Account Party
will not be liable for payment or performance that
results from the gross negligence or willful misconduct
of the Issuing Bank, except (i) where the Borrower, any
Account Party or any Subsidiary of the Borrower
actually recovers the proceeds for itself or the
Issuing Bank of any payment made by the Issuing Bank in
connection with such gross negligence or willful
misconduct or (ii) in cases where the Agent makes
payment to the named beneficiary of a Letter of Credit.
(b) In the event of the occurrence of any Event
of Default, a payment or prepayment pursuant to
Section 2.07(b) or upon the Termination Date, whether
by acceleration or otherwise, an amount equal to the LC
Exposure (or the excess in the case of Section 2.07(b))
shall be deemed to be forthwith due and owing by the
Borrower to the Issuing Bank, the Agent and the Lenders
as of the date of any such occurrence; and the
Borrower's obligation to pay such amount shall be
absolute and unconditional, without regard to whether
any beneficiary of any such Letter of Credit has
attempted to draw down all or a portion of such amount
under the terms of a Letter of Credit, and, to the
fullest extent permitted by applicable law, shall not
be subject to any defense or be affected by a right of
set-off, counterclaim or recoupment which the Borrower
or any other Account Party may now or hereafter have
against any such beneficiary, the Issuing Bank, the
Agent, the Lenders or any other Person for any reason
whatsoever. Such payments shall be held by the Issuing
Bank on behalf of the Lenders as cash collateral
securing the LC Exposure in an account or accounts at
the Principal Office; and the Borrower hereby grants to
and by its deposit with the Agent grants to the Agent a
security interest in such cash collateral. In the
event of any such payment by the Borrower of amounts
contingently owing under outstanding Letters of Credit
and in the event that thereafter drafts or other
demands for payment complying with the terms of such
Letters of Credit are not made prior to the respective
expiration dates thereof, the Agent agrees, if no Event
of Default has occurred and is continuing or if no
other amounts are outstanding under this Agreement, or
the other Loan Documents, to remit to the Borrower
amounts for which the contingent obligations evidenced
by the Letters of Credit have ceased.
(f) Section 9.01 of the Credit Agreement is hereby amended by
deleting Sections 9.01(d) and (i) in their entirety and inserting
in lieu thereof the following new Sections 9.01(d) and (i):
(d) Debt of the Borrower and the Restricted
Subsidiaries requiring no scheduled principal payments
(whether at stated maturity or by virtue of scheduled
amortization, required prepayment or redemption) due
until at least one year after the Termination Date and
issued under the Indenture or otherwise under
agreements containing covenants no more restrictive to
the Borrower or the Restricted Subsidiaries, as the
case may be, than the covenants contained in this
Agreement;
(i) RESERVED.
(g) Section 9.02 of the Credit Agreement is hereby amended by
(i) deleting the "and" at the end of clause (c), (ii) replacing
the "." at the end of clause (d) with "; and" and (iii) inserting
the following as a new clause (e):
(e) Liens securing the payment of any Debt under
the Other Credit Agreement so long as the Debt
hereunder is secured and ranks at all times at least
pari passu with such Debt under the Other Credit
Agreement.
(h) Section 12.15 of the Credit Agreement is hereby amended by
adding the following new sentence to the end thereof:
Notwithstanding any conditions of confidentiality
imposed by this Section 12.15, each party hereto (and
each employee, representative or other agent of each
such party) may disclose to any and all persons without
limitation of any kind, the U.S. tax treatment and U.S.
tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to
any such party relating to such U.S. tax treatment or
U.S. tax structure.
(i) The Credit Agreement is hereby amended by replacing Exhibit
D-2 in its entirety with Exhibit D-2 attached hereto.
(j) The Credit Agreement is hereby amended by replacing
Schedules 7.02, 7.14, 7.22, 9.01, 9.02 and 9.03 in their entirety
with Schedules 7.02, 7.14, 7.22, 9.01, 9.02 and 9.03 attached
hereto.
SECTION 3. Conditions of Effectiveness. Section 2 of this
Amendment shall become effective as of the date first set forth
above when the Required Lenders and the Borrower shall have
executed and delivered to the Administrative Agent a counterpart
of this Amendment, and all Guarantors shall have executed and
delivered the consent to this Amendment in substantially the form
of Exhibit A attached hereto.
SECTION 4. Representations and Warranties. The Borrower
represents and warrants that (a) the representations and
warranties contained in Article VII of the Credit Agreement, as
amended hereby (with each reference therein to (i) "this
Agreement", "hereunder" and words of like import referring to the
Credit Agreement being deemed to be a reference to this Amendment
and the Credit Agreement as amended hereby and (ii) "Credit
Documents", "thereunder" and words of like import being deemed to
include this Amendment and the Credit Agreement, as amended
hereby) are true and correct on and as of the date hereof as
though made on and as of such date, and (b) no event has occurred
and is continuing, or would result from the execution and
delivery of this Amendment, that constitutes an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as
specifically provided above, the Credit Agreement shall continue
to be in full force and effect and is hereby in all respects
ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of the Lenders under the Credit Agreement, nor constitute
a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent
with respect thereto, and all costs and expenses (including,
without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
SECTION 8. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the
State of the New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
duly authorized officers as of the date first above written.
BUCKEYE PARTNERS, L.P., as
Borrower
ByBUCKEYE PIPE LINE COMPANY,
its general partner
By XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Sr. V.P. Admin.,
General Counsel and
Secretary
SUNTRUST BANK, as Administrative
Agent and Lender
By XXXXX X. EAGLE
Name: Xxxxx X. Eagle
Title: Director
BNP PARIBAS
By XXXX X. SWANN________________
Name: Xxxx X. Xxxxx
Title: Director
By_GREG XXXXXXXX ______________
Name: Xxxx Xxxxxxxx
Title: Vice President
CITIBANK, N.A.
By_JORONNE JETER_______________
Name: Joronne Xxxxx
Title: Attorney-in-Fact
THE FUJI BANK, LIMITED
By ____________________________
Name:
Title:
FLEET NATIONAL BANK
By_JILL X. XXXXXXXXX BAIN_
Name: Xxxx X. Xxxxxxxxx Xxxx
Title: Director
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By__________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LTD.
By_TOM CRONIN____________
Name: Xxx Xxxxxx
Title: Director
UFJ BANK LIMITED
By__L.J. PERENYI___________
Name: X.X. Xxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By__________________________
Name:
Title:
JPMORGAN CHASE BANK
By_LEE P. BRENNAN_____________
Name: Xxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
FORM OF CONSENT
Dated as of September 3, 2003
The undersigned parties (each, a "Company"), as guarantor
under the Guaranty, dated as of September 5, 2001, made by the
Company to SunTrust Bank, as administrative agent (the
"Administrative Agent") for the lenders (the "Lenders") party to
the Credit Agreement, dated as of September 5, 2001 (the "Credit
Agreement"), among BUCKEYE PARTNERS, L.P. (the "Borrower"), the
Lenders and the Administrative Agent, hereby consents to the
amendment of the Credit Agreement by the Amendment No. 4, dated
as of September 3, 2003 (the "Amendment"), among the Borrower,
the Lenders signatories thereto and the Administrative Agent, and
hereby confirms and agrees that (i) the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that, upon the effectiveness
of, and on and after the date of, the Amendment, each reference
in the Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement,
as amended by the Amendment and (ii) the Guaranty is, and shall
continue to, be an unconditional and irrevocable guaranty of all
of the Obligations (as defined in the Guaranty).
[NAMES OF GUARANTOR]
By
Name:
Title:
EXHIBIT D-2
UNRESTRICTED SUBSIDIARIES
AS OF THE DATE HEREOF
WesPac Pipelines - Austin LLC
WesPac Pipelines - Memphis LLC
WesPac Pipelines - Reno LLC
WesPac Pipelines - San Diego LLC
WesPac Pipelines - San Xxxx LLC
Buckeye Telecom, L.P.
Buckeye Products Pipe Line, L.P.
Gulf Coast Pipe Line, L.P.
Gulf Coast / Products GP Holding, LLC
Gulf Coast / Products Holding,
